Daughter: Why is the sky blue?
Father: Because it reflects the ocean.
Daughter: Why is the ocean blue?
Father: Because its made up of water.
Daughter: Why is the water blue?
Father: Because God made it so.
Daughter: Why did God make it so?
Father: Because God likes the color blue.
Daughter: Why does God like the color blue?
Father: Because the sky is blue. Now stop asking questions and go to bed!

Explaining to a child why things are the way they are can often end in frustration as it highlights our own lack of knowledge and implicitly challenges our complacency to settle for answers such as “that’s just the way it is”. As it turns out, listening to a legal philosopher discuss the justification of our value judgments is a similar exercise in pseudo-existential crisis management. On 25 September 2013’s MEPLI Talk, Jaap Hage presented on the subject of “Justification of Value Judgments”. Hage started his presentation by addressing the fundamental problem with value judgments: Making value judgments requires reliance not just on facts, but on some type of a standard as well (i.e. the best type of law is the one that makes the most people happy). But here in lies the problem, or what Hage refers to as the “infinite regression”, where the standard that we use to establish our own value judgment is, in and of itself, a value judgment. In other words, before a value judgment can be made, a value judgment on which standard to rely on to make that initial value judgment must be made, and down the rabbit hole we go.

Hage suggested three alternative frameworks to circumvent or truncate the regression problem: 1) dogmatization; 2) coherentism; and 3) justification as dialogue. Dogmatization would employ an already existing social reality (i.e. positive law, accepted values, etc.) to stop the regression. We draw a figurative line in the sand by declaring that we will adhere to a particular standard because a particular dogma says so (i.e. “Because God said so”). Coherentism, on the other hand, justifies a standard that “belongs” to a coherent set of beliefs and other standards. So long as the standard is compatible with a particular belief set, then that standard, being in harmony with the other beliefs, can be “justified”. Justification as dialogue, deals with the problem of justifying a particular standard by having a dialogue and finding a standard that is most “convincing” (the preferred method amongst lawyers). This admittedly shifts the question from “what is true” or “what is good and what is bad” to the question of “what is convincing”, but it serves to stop the regression nonetheless. All three alternatives allow us to escape the infinite regression – a maneuver that Hage described as “sensible” – by shifting the framework, though admittedly, they are all with flaws of their own.

Hage concluded the talk by first asking – somewhat in jest – whether the audience members understood these concepts, to which we nodded in varying degrees. Hage followed up by asking whether the audience members thought this next-tier or meta-level analysis of value judgments to be useful or manageable in the context of our continuing discussions about the law (i.e. “who should make the law”, “what should that law look like”, etc.). The consensus in the room was that this analysis can indeed be useful, especially for parliaments and legislators that must make value judgments on which laws are “good” enough to be enacted.

Rethinking how we make our value judgments, not just by asking a litany of “why questions”, but through a more systematic process – as advocated by Hage – enables us to debate with one another at a much deeper level, rather than settling for a superficial conversation based on our (sometimes flawed) perceptions. This practice also makes it easier for us to find commonality even with those who we may perceive to have fundamentally antithetical views (i.e. even an avid supporter of socialist state and someone that abhors it, could find commonality in that their interests are ultimately in the welfare of its citizens). This heightened awareness of how we make and justify our value judgments may cause some unease at first, just as a conversation with a child about why God’s favorite color is blue would, but in the end, it forces us to reconsider why the beliefs and the thoughts that we have are what they are. This also allows us to analyze whatever issues we are dealing with at a more profound level, and that surely must be a “good” thing (I think).